Mary C. Landry, Appellant,v.Bill Richardson, Secretary, Department of Energy, Agency.

Equal Employment Opportunity CommissionSep 9, 1999
01974710 (E.E.O.C. Sep. 9, 1999)

01974710

09-09-1999

Mary C. Landry, Appellant, v. Bill Richardson, Secretary, Department of Energy, Agency.


Mary C. Landry, )

Appellant, )

) Appeal No. 01974710

v. ) Agency No. 94 (77) SPRO

) Hearing No. 270-95-9035X

Bill Richardson, )

Secretary, )

Department of Energy, )

Agency. )

)

DECISION

Appellant timely initiated an appeal from a final agency decision

(FAD) concerning her equal employment opportunity (EEO) complaint of

unlawful employment discrimination on the bases of race (White), color

(light-brown), sex (female), reprisal (prior EEO activity), and age

(D.O.B: 9/12/42), in violation of Title VII of the Civil Rights Act of

1964, as amended, 42 U.S.C. � 2000e et seq. , and

the Age Discrimination in Employment Act of 1967 (ADEA), as amended,

29 U.S.C. � 621 et seq. Appellant alleged she was discriminated against

when: (1) she was disqualified from competing for a GS-560-9/12 Budget

Analyst position that was filled on January 9, 1994, and (2) she was not

selected for the position of Logistics Management Specialist, GS-346-5

(target level GS-11), in February, 1994 under the upward mobility program.

The appeal is accepted in accordance with EEOC Order No. 960.001.

For the following reasons, the agency's decision is AFFIRMED.

Following an investigation, appellant requested a hearing before an

Equal Employment Opportunity Commission (EEOC) Administrative Judge

(AJ). Following a hearing<1>, the AJ issued a Recommended Decision (RD),

finding no discrimination. The agency's FAD adopted the AJ's findings of

no discrimination. It is from this decision that appellant now appeals.

The record reveals that during the relevant time, appellant was employed

by the agency as a secretary, GS-318-07, at the Strategic Petroleum

Reserve Project Management Office (SPRPMO) in New Orleans, Louisiana.

In December 1993, the agency issued a vacancy announcement for the

position of Budget Analyst, GS-560-09/11/12, for which appellant applied.

Also in December 1993, the agency issued a vacancy announcement for the

position of Logistics Management Specialist, GS-346-05, target level GS-11

(upward mobility position), for which appellant applied. Ten candidates,

including appellant were referred for selection. The selection panel

was composed of three selecting officials (SOs). In February 1994,

a Black female candidate (S1), who was under the age of 40, and the

youngest of the applicants was selected for one of the positions.

Budget Analyst position

The AJ concluded that appellant failed to establish a prima facie case of

race, color, sex and age discrimination. Appellant did not qualify for

selection to the Budget Analyst position. Assuming that appellant had

established a prima facie case of race, color, sex and age discrimination,

the AJ found that the agency articulated a legitimate non-discriminatory

reason for disqualifying appellant. Specifically, appellant did not

have sufficient GS-7 experience in budget or accounting work to meet

minimal qualifications; therefore, she was not qualified for the position.

Appellant's experience was either clerical or at the GS-6 level. Whereas

the selectee had three years of experience as an operating accountant

at the agency, and six months of this experience was at the GS-11 level.

The AJ determined that appellant failed to establish that the agency's

articulated reason was a pretext to mask unlawful discrimination. The AJ

found that appellant did not provide any evidence that she was qualified

to compete for the Budget Analyst position. Appellant conceded that

she had never done GS-7 level accounting work, and that she did not have

specialized experience at the GS-7 level.

Logistics Management Specialist position

The AJ concluded that appellant established a prima facie case of race,

color and age discrimination. One of the selectee's, S1, is a Black

female who at the time of the selection was under 40 years of age.

However, the AJ determined that appellant failed to establish a prima

facie case of sex discrimination. Appellant did not demonstrate that

similarly situated employees who are male; thus, not in her protected

class, were treated differently under similar circumstances with respect

to her nonselection. S1 and the other three selectees are female.

With respect to race, color and age discrimination, and assuming that

appellant had established a prima facie case of sex discrimination, the AJ

concluded that the agency articulated legitimate nondiscriminatory reasons

for not selecting appellant. The AJ determined that appellant's race,

color, sex and age had nothing to do with her nonselection. Appellant

was not as qualified as S1. S1 was selected because she was one of the

best qualified candidates. She had initiative, was a self-starter,

could work with limited supervision and was a team player. She had

knowledge of the program, was articulate and could write. The other

three selectees who were White females, age 40 or older, were selected

as top candidates for the same reasons. Additionally, S1 interviewed

extremely well. Also, the AJ found that S1 had the desire and drive to

improve herself and advance. Whereas appellant did not have the desire

and drive that S1 and the three other selectees possessed.

The AJ determined that appellant failed to establish that the agency's

articulated reasons were a pretext to mask unlawful discrimination.

The AJ found that the record did not reveal that appellant was better

qualified than S1. Furthermore, appellant did not show that the agency

considered S1's race or that the three SOs who recommended S1 as one of

four top candidates did so because of her race and color. Furthermore,

the AJ found that appellant did not show that she was not selected

because she was over the age of 40.

After a careful review of the entire record, including appellant's

contentions on appeal, and arguments and evidence not specifically

addressed in this decision, the Commission finds that the AJ's RD

summarized the relevant facts and referenced the appropriate regulations,

policies, and laws. We note that appellant failed to present evidence

that any of the agency's actions were motivated by discriminatory animus

towards appellant's race, color, sex, and age. Therefore, the Commission

discerns no basis to disturb the AJ's findings of no discrimination.

Accordingly, it is the decision of the Equal Employment Opportunity

Commission to AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in the

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments

must bear proof of postmark and be submitted to the Director, Office of

Federal Operations, Equal Employment Opportunity Commission, P.O. Box

19848, Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and any supporting documentation must be submitted with your

request for reconsideration. The Commission will consider requests

for reconsideration filed after the deadline only in very limited

circumstances. See 29 C.F.R. � 1614.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that you have the right to file

a civil action in an appropriate United States District Court WITHIN

NINETY (90) CALENDAR DAYS from the date that you receive the decision.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive the decision. To ensure that your civil action is

considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR

DAYS from the date that you receive the decision or to consult an attorney

concerning the applicable time period in the jurisdiction in which your

action would be filed. If you file a civil action, YOU MUST NAME AS THE

DEFENDANT IN THE COMPLAINT THE PERSON WHO IS THE OFFICIAL AGENCY HEAD

OR DEPARTMENT HEAD, IDENTIFYING THAT PERSON BY HIS OR HER FULL NAME AND

OFFICIAL TITLE. Failure to do so may result in the dismissal of your

case in court. "Agency" or "department" means the national organization,

and not the local office, facility or department in which you work. If you

file a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1092)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action.

Both the request and the civil action must be filed within the time

limits as stated in the paragraph above ("Right to File A Civil Action").

FOR THE COMMISSION:

9/09/99

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations1 During the hearing

appellant withdrew her reprisal allegations.